Ohio & M. Ry. Co. v. McCartney

• Decision Date: 09 January 1890
• Parties: Ohio & M. Ry. Co. v. McCartney.
• Court: Indiana Supreme Court

121 Ind. 385

23 N.E. 258

Ohio & M. Ry. Co.

v.McCartney.

Supreme Court of Indiana.

Jan. 9, 1890.

Appeal from circuit court, Jefferson county; W. T. Friedley, Judge.

Action by John J. McCartney against the Ohio & Mississippi Railway Company for damages by fire caused by sparks from defendant's locomotive. Judgment for plaintiff, and defendant appeals.

H. D. McMullen and J. M. McGregor, for appellant. Korbly & Ford, for appellee.

Mitchell, C. J.

McCartney sued the railroad company to recover damages alleged to have been sustained by him on account of the destruction of certain property by fire which the company negligently permitted to escape from its locomotive engines. It is averred in the complaint “that on the 7th day of November, 1885, while the defendant was running a locomotive over its track, sparks and fire escaped from the locomotive, and negligently set fire to grass upon the plaintiff's land, and burned and destroyed,” etc.; “that said fire, injury, and damage were not in any manner caused by the act, fault, or neglect of the plaintiff, but wholly by the neglect and carelessness of the defendant.” It is argued that the demurrer to this complaint should have been sustained, because of the absence of any averment that the fire was permitted to escape through any negligence or fault of the company. The pleading is not aptly worded; but it is, nevertheless, fairly charged therein, in general terms, that the plaintiff's property was destroyed by fire which escaped from the defendant's locomotive engines, through its neglect and carelessness. As was said, in substance, in Railway Co. v. Jones, 86 Ind. 496, the averments in the complaint as to the imputed negligence of the appellant were not made in the usual form, nor in the connection in which such averments are most appropriate in cases like this; but the concluding charge, that the fire, injury, and damage were caused wholly by the neglect and carelessness of the defendant, was sufficient to characterize all that had been done or permitted as having been negligently done and permitted. Railway Co. v. Hanmann, 87 Ind. 422. It is a settled rule that a general charge of negligence resulting in injury and damages is sufficient, as against a demurrer. Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234; Hammond v. Schweitzer, 112 Ind. 246, 13 N. E. Rep. 869.

It was assigned as a cause for a new trial “that the court erred in giving to the jury instructions numbered from one to seventeen, inclusive.” The overruling of the motion for a new trial is assigned as error here, and under this assignment some of the instructions are severally assailed. As will be seen, the motion for a new trial joins all the instructions together, in general terms, without separating or pointing out any one or more as erroneous. Such an assignment, like a joint demurrer to separate paragraphs of a pleading, can only be maintained by showing that all the instructions are incorrect. It is an established rule that a motion for a new trial which assigns as a cause that the court erred in giving or refusing instructions must specify with reasonable certainty the particular instruction upon which error is predicated. Sutherlin v. State, 108 Ind. 389, 9 N. E. Rep. 298; Grant v. Westfall, 57 Ind. 121;Rudolph v....